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| Police on patrol - up against soaring crime

Referring to my learned friend, Mr. Hemantha Warnakulasuriya's theme 'Justice Hurried v. Justice Buried' in his column "Scrutiny" (3/11/03), I am indeed only too glad to find myself on the same side of the fence in deploring firstly, the present rampant surge of crime - which authorities concerned, or who should be concerned, have dismally failed to bring under control.

There is in fact an element of surprise - pleasant surprise - about Mr. Warnakulasuriya's reactions as coming from a leading practitioner, and exponent, of the Criminal Law. Others of this extensive class seem to prefer to keep a low profile - for the simple reason that their own harvests are directly proportional to the malaise. Here again, I would like to compliment Mr. Warnakulasuriya on his disinterested concern for the public weal.

Mr. Warnakulasuriya makes reference to data recently quoted by the Chief Justice, showing that only 4% of those charged in the courts are convicted. That is to say, to borrow Mr. Warnakulasuriya's own words, "Virtually 96% go scott free without incurring any punishment". In other words, Sri Lanka is a criminals' paradise. And our structures of governance and - specifically - of justice are geared to help them get away.

This reminds me of certain comparable British Crime Survey statistics for - as I recollect - 1991. Out of an aggregate of 15 Million crimes for that year in Britain, the number of convictions was 235,000. Percentage: 1.5%. Apparently, the two countries are boon companions which, to borrow a Chestertonian phrase, are "going gaily in the dark!"

Latterly, however, public concern in the more intelligent level in British society began to be outraged at the damning statistics of surging crime in the country, which led to fierce controversy both within and without Parliament. It is out of the crucible of that debate that Britain's Prime, Minister, exactly a year ago, put forward proposals which are destined to prove a water-shed and change the face of the criminal law in that country for all time. And predictably, that of all other parts of the world that by accidents of history have borrowed British bigotry that has confused and confounded the even balance of law and order and put pierceable societies at the mercy of the minuscule proportion of their villains. (Which reminds one that Charles Dickens roundly condemned the English Law as calculated to put all the honest men under the diabolical hoofs of all scoundrels!)

Reverting to the British Prime Minister, Tony Blair, marking an epochal volte face in English Criminal Law doctrine, gave this plain diagnosis of the malaise of the crime wave as lying in:

Justice weighted towards the criminal and in need of re-balancing towards the victims of crime.

Added the British Prime Minister:

'We need to draft the English legal system away from what Lord Justice auld describes as 'centuries of haphazard statutory and common law accretion,'

vowing:

In a major reform of criminal justice, we will re-balance the system emphatically in favour of victims of crime... In our own appraisal of the English criminal justice system - followed also in Sri Lanka - and even more impatient of humbug, and hence more candid and ruthless, we join the company of philosopher and commentator on the English law of evidence, Jeremy Bentham, in regarding the criminal law as the law of rogues and criminals - a kind of legal accessory after the fact. (Actually, months before the British Prime Minister declared his ideological volte face, we had ourselves writing in the local press called the linchpin of the English Criminal Law, the Presumption of Innocent - "TRASH"!

The instance of the two items of statistics above mentioned suffices to demonstrate the existence a flaw in the law that is systemic that brings about the same type of result whenever it operates. It is the blind who will not see.

It is well known that for the purpose of stepping up law's effectual performance, the Chief-Justice's idea is "ruthlessness" of criminal investigation, particularly by way of the application of the latest sophistications in forensic science. But this does not seem to hold water judged by the figures quoted from Britain. Actually, comparative statistics nearer the present date make equally dismal reading: and it could not to be suggested that standards in forensic science in Britain are all that primitive.

To our mind, the source of the trouble is quite simple, as already hinted at by Britain's Prime Minister in his considered opinion that English Criminal Law is slanted in favour of criminals.

The source of the bias itself is readily identified as lying in the far far overblown concern for the criminal, ending up with the outright and irrational bigotry of what is called the 'Presumption of Innocence'.

When one began the study of law about half a century ago, when the afterglow of British imperialism - the main disseminator of British bigotry, even up to the level of the Universal Declaration of Human Rights, Article 11 (1) - still lingered on, the cliche was literal dogma.

However' in a current-day text, a professor emeritus of law of the London School of Economics has this to say:

"The adversarial system does not presume that all people arrested are innocent, "otherwise no one would be arrested or remanded in, custody.

The trial and the system of appeals (in English Criminal Law) never establishes the innocence of the accused. Because a person is acquitted does not mean he or she was innocent in the commonsense meaning of the word.

"The question of whether someone is innocent is not one that is addressed in a criminal trial in our legal system"

("Criminal Justice" by Davies, Croal and Tyrer, Longman London, 1998)

And to think that the rendition of "acquittal" in Sinhalese is ........ ............... - as if court, in addition to giving an accused the benefit of the doubt, also bestows on him a Christian kind of "absolution" that wipes away all trace of the crime possibly left in the residue of doubt which the court has failed to conclusively resolve.

This loose and slovenly semantics of the Presumption is only matched - or surpassed - by the absurdity of its slanted justice. On the one hand, it prohibits a suspect being asked if he did commit the offence charged. Granted it is he, in all probability, who holds in his head the best evidence on the point in all the universe, the abstention elevates itself to the level of the greatest folly in Christendom! Actually, the hesitancy in this regard may be said to derive from ill-digested scholastic thinking dating back to the Middle Ages! How blind veneration of dated ideology continue to hold humanity in its thraldom centuries afterwards now into the Third Millennium!

Meantime, the mischief and misery it wreaks on society is incalculable.

Not only may the accused not be asked the question of this guilt, but he may not be compelled to give evidence. He can make what is called a 'Dock statement', where again, he has the advantages of not testifying on oath, and being free from cross-examination.

Without these advantages, the evidence of complaint (if alive, that is) and prosecution witnesses is dissected threadbare in cross-examination, and time and over-exploitation of verbal variations and other grammatical inflexions in the course of repetition of statements regurgitated with evidence over lengthy periods of time reduce them to shambles that renders them unacceptable for purposes of the high standard of cogency demanded of proof beyond all reasonable doubt.

Actually, these unequal methods in a process where essential the word, of mouth rather than light - reading, or hoodoo, or the summoning of deities render proof as much of a feast as going to heaven as the task is equated to a camel going through the eye of a needle.

That this irrationally twisted protection to the suspect inevitably devaluates pro tanto the life/liberty/property not only of the victim but also of all the rest of the community by rendering the escape of the offender pro tanto easier seems to be a logic to which criminals, and equally with them, their apologists, are wilfully and myopically blind.

It is a fair guess that a majority of especially capital crimes are repeat offences.

As an empirical result of this diabolical methodology might be cited the example of another and even more hideous statistic from the crime scene in Sri Lanka: that for the 12 year period from 1990 to 2002, the number of homicides has been 21,185. The relative number of convictions (with some cases yet pending) - 97. Percentage, 0.4% - naught decimal four per cent!!! ("Silumina", 27.07.03)

Actually, one or more persons in our legal hierarchy not earning their keep, and must make way for others who would. There indeed is something hideously rotten in the state of Denmark!

However, to abridge this woeful tale, it is for compelling reasons such as these that in our representations to the Select Committee of Parliament we proposed the "ruthless" revolution of adopting the following simple paradigm as the first step in criminal investigations:

1. That immediately on arrest the suspect be promptly taken without any interruption or interval not to the police station but to the local magistrate.

2. That the suspect be there called upon to make a full and detailed statement on oath to the Magistrate in answer and explanation to the charge on which he is arrested - or, in the alternative an unqualified confession admitting commission of the crime.

3. That the magistrate be requested in law to interrogate the suspect at his discretion to as certain the truth the whole truth, and nothing but the truth.

4. The suspect's statement to be required to be taken down in his own words, signed by him.

5. Such statement to be admissible in evidence, and to constitute evidence in chief at the trial, without need of oral repetition.

6. The first complaint to be taken on exactly similar procedure, free of course of arrest etc., so that evidence on both sides is taken in terms of absolute parity.

Our firm belief is that, as the inevitable logical consequence, such interrogation upon first arrest, by the Magistrate, and secured upon oath and admissible as evidence for all purposes, is bound, by reason of the fresh sense of remorse, the tell-tale traces of the res gestae, and immediately available witnesses, is bound to result in plain and simple confessions in the vast majority of cases. This dispenses with bail, remand, repetitively regurgitated evidence open to subjective variations with each repetition and stultifying itself in the process and the thousand and one other modes of those concerned tying themselves up in knots, and going round in circles - all for the abysmal folly of not simply asking the right question at the right time.

Thus most criminal prosecutions will finish at the starting point!

The proposed methodology would also eliminate the lingering torment as to whether despite all the resource of human reason, personal testimony of witnesses, and the physical evidence of res gestae leading up to judgement of conviction on the basis of 'proof beyond all reasonable doubt' there might still be a loophole in logic pregnant with the possibility that the accused is in fact innocent. This is readily eliminated when the accused confesses, not of course under duress, but the coercive power of the evidence, witnesses etc. he finds ranged against him, which he will find impossible to explain away.

Indeed, 'catching by the mouth is well known to Sri Lankan culture: the bumbling bigotry of English Law should not be permitted to frustrate its simple methodology in bringing guilt home swiftly to the guilty, and by thus visiting crime with instant judgement, rendering it not worth the while. By and large crime, at least in the proportions we witness' at the present day, will wither away - a consummation devoutly to be wished.

As regards the law's delay, one is able to quote off the cuff two utterances of the ultimate wisdom on the point, also now shrouded in bogus mystery.

As the Bar Journal for May/June 1983 records, a comparison of case arrears in the courts as compared with the figures for 1974 led then Chief Justice Neville Samarakoon to call for the DOUBLING of all District Courts and Magistrates Courts as the only way of clearing the backlog - and indeed, of keeping case - flow free of congestion.

In the other instance, when the then Prime Minister of Pakistan Nawaz Shariff, appointed military courts to deal with rampant crime by having criminals punished "overnight," and the Supreme Court declared such courts illegal, the best advice its whole membership in a body found it possible to give their Prime Minister was to establish more courts.

This bears analogy with the like wisdom displayed in Christ's parable of the owner of the vineyard who had to venture out into the streets to hire the necessary labour to gather in his harvest. There is simply no way out of disposing of work except by engaging the workforce necessary to do it within rational expectations in the time-frame. It is idle and self-deceiving to suppose this could be achieved by ingenious tricks and stratagems that dispense with more personnel and other infrastructures though even here, it is admitted that there is considerable scope for streamline 'organization and methods' in the courts especially by the induction of modern techniques and technology.

But in the final analysis money is required to upgrade essential court infrastructure. Justice Neville Samarakoon complained that not five cents had been allocated for the courts in the then budget. Indeed the courts seem to figure in the state exchequer as some kind of Cinderella condemned to perennial tatters - and the legal community for some unknown reason resign themselves to the contemptuous treatment.

However in these days of expressways, airports, seaports burgeoning in all direction, and even elementary schools being equipped with the latest computers technology, nevertheless the notion lingering on that Sri Lanka is too impoverished for any significant budgetary appropriations for the courts, with the legal community in their psyche resigning themselves to the doghouse, is an insult to the sovereign people who have to resort to the courts to settle their dispute. As has been well said the courts belong to the people, who must wake up, or indeed be woken up, to their right to a better deal.

The common sense maxim of the market place applies here - Cheap things no good: good things no cheap. For God's sake, please, please, let's not cheat ourselves with humbug and bogus mystery.

One hopes Mr. Warnakulasuriya's proposals are already before the Select Committee of Parliament on the Administration of Justice which, despite closure of time for representations, is yet to start on, their work presumably in the context of other constitutional and political work. Even so; work on law reform must be taken also in its stride, and we ourselves continue in our efforts to add to what we have already submitted.

In addition, I wonder if Mr. Warnakulasuriya is aware that at the moment that there is a Presidential Commission of Inquiry also appointed on the subject of the crime wave, chaired by Justice W. D. Wadugodapitiya, with offices at the BMICH. This provides a heaven - sent opportunity to put forward representations/suggestions/proposals by all concerned individuals and groups. We have ourselves already sought leave for an appearance. We hope that from the opposite ends of the spectrum of criminal law ideology we would have the pleasure of meeting Mr. Warnakulasooriya there.

However, in now again going to the press on the theme of the British Prime Minister's radical pronouncement on English Criminal Justice, the scales of justice, the central element in any justice at all, must now lie shattered to bits on the ground! Judges and lawyers alike, quite apart from the rest of the public, ever sensitive to miscarriages justice, must revolt in horror and outrage at having to operate of justice system now branded not only as slanted justice, but what is worse, justice slanted in favour of criminals. To any sensitive mind, if such is the situation, it warrants immediate suspension of at least all final judgements in all our criminal courts until such time as a genuinely just and fair system of criminal law is put in place - fast!

S. Costa, Attorney-at-Law

President, for Kandy Litigants' Association

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